CAAFlog » Military Justice Legislation

The Hill reports here on the Senate’s final passage of the National Defense Authorization Act for Fiscal Year 2015. The complete text of the bill is available here.

The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:

  • Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
    • Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
    • Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
    • Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
    • Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
    • Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
    • Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
    • Technical changes to the new Article 6b (original text analyzed here and here);
    • Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
    • Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
  • Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
  • Section 535 enacts a new paragraph (e) in Article 6(b) that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
  • Section 536 limits the admissibility of good military character evidence, as follows:

SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.

(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

I’ve written about this before and I will write about it again in the coming weeks.

  • Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
  • Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.

Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. My ongoing analysis of the military justice provisions in that legislation is available at this link.

Article 6b is a military version of the federal Crime Victims’ Rights Act (18 U.S.C. § 3771) (the CVRA), and many people (including myself) call it the Military Crime Victims’ Rights Act (the MCVRA) (I think the Joint Service Committee coined the term).

Article 6b(b) provides the following definition:

(b) Victim of an Offense Under This Chapter Defined- In this section, the term ‘victim of an offense under this chapter’ means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

The problem with the definition is that it doesn’t provide a clear point in time when the protections of Article 6b apply (i.e., at the time of commission of the alleged offense? At the time the report is made? Once a formal investigation begins? After charges are preferred? Etc., etc…).

The analogous CVRA may be a source of some guidance, except that it is also somewhat unclear. In this post at The Volokh Conspiracy, Paul Cassell discusses a paper he co-authored (available here) that argues that the CVRA applies before charges are filed, while the Justice Department took the position (in this memo) that the CVRA generally applies only after charges are filed.

Notably, the special victims counsel (SVC) component of the military’s legal assistance program (established in 10 U.S.C. § 1044e) states that SVC services (for sex-related offense victims) begins:

[U]pon report of an alleged sex-related offense or at the time the victim seeks assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness liaison, a trial counsel, a healthcare provider, or any other personnel designated by the Secretary concerned for purposes of this subsection.

10 U.S.C. § 1044e(f)(1).

The National Defense Authorization Act (NDAA) for Fiscal Year 2014 (FY14) made numerous changes to the UCMJ (analysis available here). Among those changes was section 1702(b) of the NDAA, revising Article 60(c) to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. This section was the focus of my analysis published earlier this month by LexisNexis (available at 2014 Emerging Issues 7217).

The revised Article 60(c)(2)(B) states that “except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” This allows a convening authority to modify the adjudged sentence, with certain limits. The limits are provided in Article 60(c)(4)(A), which states:

Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

My Emerging Issues Analysis discusses why this language limits a convening authority’s power for only the adjudged punishments of (1) confinement for more than six months and (2) a punitive discharge, leaving a convening authority free to modify any other adjudged punishment in any case. So, for example, when an accused is sentenced to confinement for one year and a $5,000 fine, the statute permits suspension of the fine (because it is not “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge]” ).

But the Secretary of the Navy recently took the opposite position in ALNAV 051/14, promulgating guidance that I believe is both erroneous and unlawful.

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Here is a link to Global Military Justice Reform’s post of the June 30, 2014, NIMJ submission to the Military Justice Review Group (UPDATE:  Here is the full submission).  Here is a link to the nearly empty webpage of the Military Justice Review Group being run by the DoD OGC.  As we mentioned the MJRG isn’t subject to FACA so there is no transparency requirement, but I have to say that the webpage is still pretty bad even for that low bar.

I am sure Zee will be happy see recommendation #7:

Bring the varied definitions of a “victim,” implemented in the 2013 changes to the UCMJ, into consonance as detailed in CAAFLog’s analysis of the 2013 changes.

There are five different definitions of the term “victim” in these changes, in Article 6(b), Article 32, Article 46(b), Article 60(d), and the new 10 U.S.C. § 1044e (the SVC statute).  See Zachary D Spilman’s comments: 2013 Changes to the UCMJ – Part 6: Practice notes,  available at http://www.caaflog.com/2014/01/10/2013-changes-to-the-ucmj-part-6-practice-notes/ .

My personal favorite, is #13:

13)  Amend R.C.M. 806 or 808 to provide for public and media access to court-martial pleadings and rulings in a timely fashion through adoption of the PACER system or its equivalent.  Such a system would promote transparency and would allow public and media access to court-martial proceedings in a timely fashion, goals that would enhance public understanding and confidence in the administration of military justice.

The Report of the Response Systems to Adult Sexual Assault Crimes Panel was released to Congress on June 27, 2014. Here is today’s coverage (via Stars and Stripes) of the report and a link to the report, here, now available on the Panel’s website. Stars and Stripes reports that 7 of the 9 members recommended keeping referral decisions in sexual assault cases with the chain of command. Former NIMJ President, Professor Elizabeth Hillman was one of the dissenters, along with Harvey Bryant the former elected Commonwealth’s Attorney in Virginia Beachand past chair of the Virginia State Bar Association’s Criminal Law Section, writing

The Panel’s assessment revealed many improvements already in place and other areas in which changes should be made. Removing prosecutorial discretion from the chain of command, however, is not among the changes recommended by the Panel. We write separately because it should be. Court-martial convening authorities, a small and high-ranking part of the military’s command structure,1 should no longer control the decision to prosecute sexual assault cases in the military justice system. The Panel’s recommendation that the authority to prosecute remain within the command structure of the military is based on the testimony of high-ranking commanders and attorneys within the U.S. military. It neglects the words of survivors of sexual assault, rank-and-file Service members, outside experts, and officers in our allies’ militaries. They tell us that the commander as prosecutor creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates, and undermines the confidence of victims.2 Preserving command authority over case disposition, pre-trial processes, and post-trial matters prevents commanding officers from acting assertively to deter and punish military sexual assault.3 It also undermines the rights of both victims and accused Service members, all of whom deserve an independent and impartial tribunal.

The report included 125 separate recommendations for changing everything from the UCMJ to budgets for various portions of the military justice system. As we reported earlier, here, two other panels will weigh in on some of the same topics later this year.

The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel will “conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and related offenses since the amendments made to the UCMJ by section 541 of the National Defense Authorization Act of Fiscal Year 2012 (“the FY 2012 NDAA”) (Pub. L. 112-81) for the purpose of developing recommendations for improvements to such proceedings.”   The Military Justice Review Group has a broader focus on a comprehensive review of the military justice system, but seems to have the same impetus as the other panels.

A brief recognition that today is 180 days after the President signed the National Defense Authorization Act for Fiscal Year 2014, enacting the various changes to the UCMJ that I analyzed in this series of posts.

The NDAA contained 38 sections that addressed military justice issues (I’ve excerpted all 38 of these sections into this Word document and this PDF). The implementation of many of those sections was delayed until today.

Among those 38 sections were eight sections that made ten changes to the Code. Of those ten changes, three were delayed until today:

Notably, the changes are effective only for offenses committed on or after today. For offenses committed before today, the old provisions still apply.

Some think that the provisions addressing victim participation in the post-trial process were also delayed until today. As discussed in this post, I think they’re wrong. But now that’s somewhat moot.

The last of the changes to the Code to take effect is the new Article 32 (analyzed in this post). That change is effective in December.

Nancy Parrish has an interesting Op-Ed in Huffington Post, here, discussing why she thinks the changes to Art. 32 hearings are a reversal of recent gains on behalf of victims of sexual assault in the military justice system.  Our coverage of the changes being enacted is here and the Fed. Reg. notice is here.

The Armed Services Committee issued a press release announcing the mark-up of NDAA 2015.  Included for our viewing audience are items related to:

 Continue to address the troubling prevalence of suicide within the military community.  While the Committee is cautiously optimistic about the recent decline in suicide rates in the force as a whole, the increase in suicides among the Special Operations Force and new information on suicide for immediate military family members is deeply troubling.  The Committee requires additional reporting on suicide rates for immediate family members of active and reserve forces and an assessment by the Secretary of Defense of the increase in suicides among special operators.

Continue robust oversight and reform of the military’s handling of sexual assault.  This includes reporting requirements updating Congress on progress in implementing the dozens of reforms included in the FY12, 13 and 14 NDAA.  It also includes new reforms spearheaded by Reps Turner (R-OH) and Tsongas (D-MA), including as part of every commander’s performance appraisal – an assessment of the handling of sexual assault cases and how unit members treat those making sexual assault allegations.

You perhaps be particularly interested in:

 SEC. 532 [Log 53901]. ADDITIONAL DUTY FOR JUDICIAL PROCEEDINGS PANEL REGARDING USE OF MENTAL HEALTH RECORDS BY DEFENSE DURING PRELIMINARY HEARING AND COURT-MARTIAL PROCEEDINGS.

And also this.

 Section 505—Required Consideration of Certain Elements of Command Climate in Performance Appraisals of Commanding Officers.  This section would require a Secretary of a military department to include information regarding command climate with regard to allegations of sexual assault and the response to the victim of sexual assault by other members of the command on the performance appraisal of a commanding officer.

There are some potential significant issues depending on how the Services effect this proposal in addition to changes already being made.  On its face the rule change calls for something no different than getting graded on support for attention to EEO standards and programs.  So as a general principle I’m not averse to holding all accountable.  But, in view of the sexual assault politics, there is cause for concern in the way such a policy or practice may be enforced, or morph into.

The Army and Air Force has made changes along these lines for reports on all officers regardless of grade or position.  This includes defense counsel, military judges, and importantly panel members.

There is a significant problem IMHO with the Army rule (Army Admin Directive 2013-20), as I recently told a military judge along with the request for recusal and as part of a UCI motion.  The Army does not seem to counsel care when rating military judges, trial counsel (who have ethical obligations), staff judge advocates (who have ethical obligations), defense counsel (who have ethical obligations, see my post here), and members.  The Air Force has attempted to address the issue, although not strongly enough in my view, in their change.  Whereas the Army rule makes no attempt to account for Article 37, UCMJ, the Air Force does.  See, Asst DCS, Manpower, Personnel and Services Memorandum, Air Force Guidance Memorandum (AFGM) to AFI 36-2406, Officer and Enlisted Evaluation Systems, 1 January 2014.  Unlike the Army, the Air Force includes at least this language:

 1.12.5.5. Court-Martial Panel Membership. Do not consider performance as a member of a court-martial panel, or render a less than favorable evaluation because of the zeal in which the ratee served as a defense or respondent’s counsel (see Article 37, UCMJ). This is not intended to inhibit an accurate portrayal of a counsel’s competence in the representation of clients.

(I have asked one military judge to recuse themselves on the basis of the Army administrative directive, and I’m working on writ related to the recusal).

According to this Reuters report, the Sinclair trial is delayed “indefinitely,” and the members are returning to their normal duties. The Associated Press adds that:

Attorneys for an Army general charged with sexual assault said Tuesday that they have decided to try to renegotiate a plea bargain with a new set of military officials after the judge determined that the case may have been improperly influenced by political concerns.

Judge Col. James Pohl sent the jury of generals back to their duty stations around the world after attorneys for Brig. Gen Jeffrey A. Sinclair announced their decision. The two sides will enter negotiations to try to resolve the case. A new general and legal advisers would have to be brought in to approve any new deal.

Additional coverage in this local media story and this LA Times story. But if you haven’t been following along over the past few days, you’re probably going to want to at least skim our recent coverage at this link.

The Senate passed Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) by a vote of 97-0. Coverage of the bill is available in our Military Justice Legislation category. The Hill reports here that the bill may not get consideration in the House outside of the normal NDAA process.

And finally, from this Air Force Times Report:

An airman whose sexual assault case was dismissed last September by former Third Air Force commander Lt. Gen. Craig Franklin will now face court-martial on rape charges.

The Congressional Record now has the full transcript of the floor debate on Senator Gillibrand’s “Military Justice Improvement Act” (S. 1752) (link to Thomas) (cloture failed) and Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) (cloture invoked; vote scheduled for 5:30 p.m. on Monday, March 10).

I’ve saved the text of the debate as a 31-page PDF that you can download here.

I encourage you to read it all, but I think the comments of Senator Levin (D-MI), Chairman of the Senate Armed Services Committee, are particularly good and I reproduce them after the jump.

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As shown in this record of votes, after a lively floor debate (that you can watch here, beginning at 2:06:30), the Senate failed to invoke cloture on Senator Gillibrand’s “Military Justice Improvement Act” (S. 1752) (link to Thomas). However, the Senate unanimously voted to end debate on Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas), and it scheduled a vote on the bill for 5:30 p.m. on Monday, March 10.

The bill’s current text does not make any changes to the UCMJ. Unfortunately, it does seek to eliminate the general defense of good military character:

[Section 3:]
(g) Modification of Military Rules of Evidence Relating to Admissibility of General Military Character Toward Probability of Innocence- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be modified to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except that evidence of a trait of the military character of an accused may be offered in evidence by the accused when that trait is relevant to an element of an offense for which the accused has been charged.

I’ve written about this proposal before (in this post), and if it becomes law I’ll write about it again. But for now I’ll just note that one criticism of the defense of good military character – that it “advances the perception that one of the privileges of high rank and long service is immunity from conviction at court-martial” (Elizabeth Hillman, The “Good Soldier” Defense: Character Evidence and Military Rank at Courts-Martial, 108 Yale L.J. 879 1998-1999 (available here)) – isn’t actually addressed by the elimination of the ability to present evidence of general good character. Quite the opposite actually, as the high-ranking accused can just sit at the defense table wearing his good military character on his chest. It’s the junior accused who needs to present evidence of his character to convince the finder of fact that it is “unlikely that he would be guilty of the particular crime with which he is charged.” Edgington v. United States, 164 U.S. 361, 363 (1896) (link).

The Senate is currently debating further reforms to the UCMJ, including the Gillibrand and McCaskill bills (discussed here). Live video on the Senate’s website here, and video of the day’s full session at C-SPAN here.

Brigadier General Sinclair is pleading guilty to nine specifications of three charges. According to this story:

Sinclair faces eight charges that enumerate 23 allegations of wrongdoing.

He proposes to plead guilty to three of the eight charges, admitting nine of the 23 allegations of wrongdoing, according to Scheff.

Sinclair’s planned guilty pleas include adultery with the captain, engaging in an inappropriate relationship with the captain, having inappropriate (but nonphysical) relationships with two other female Army officers, and possession of pornography in violation of Army orders in Afghanistan.

He also plans to plead guilty to conduct unbecoming an officer and a gentleman by engaging in sexually explicit communications with the two female officers that he had non-physical inappropriate relationships with – obtaining a nude photo of one – and of attempting to have an inappropriate relationship with a fourth female officer.

And Sinclair will plead guilty to impeding the investigation by deleting a nude photo of a civilian woman and deleting a personal email account, Scheff said.

Sinclair continues to plead not guilty to: committing forcible oral sodomy on his mistress, fondling her genitalia at times when she did not wish to have sexual contact with him, and by committing open and notorious sex acts in public places with the woman

In part five of my six part series about the military justice reforms in the FY14 NDAA, I discussed sections 1702 and 1706 of the NDAA (complete NDAA text available in Word here and in PDF here). Both of these sections made changes to Article 60, which gives the convening authority the power to act on the findings and sentence of a court-martial. Section 1702(b) of the NDAA completely rewrote Article 60(c) of the UCMJ, implementing major changes that limit a convening authority’s previously-unlimited power to disapprove a finding of guilty or reduce a sentence. Section 1706 of the NDAA created a new Article 60(d) that gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

Within section 1702 is express language making it effective 180 after enactment. But section 1706 does not include such language. Because of this, I made the following statement in part five of my series:

The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

I’ve since learned of an alternative interpretation that reads the NDAA to make both sections 1702 and 1706 effective 180 days after enactment. I suspect that this interpretation is based on the fact that at the beginning of section 1706 are the words “…as amended by section 1702…,” and that the alternative interpretation reads this language to incorporate the effective date from section 1702 into section 1706. But for the following reasons I respectfully disagree with this interpretation, and I maintain my belief that Congress intended a victim to have the right to submit matters immediately.

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I’ve combined my recent six-post series discussing the military justice reforms in the FY14 NDAA into a single PDF that you can download at this link. The six original posts are available here.

This is part six of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

After working through the military justice provisions in the NDAA and writing this series of posts, it’s clear that the first practice note is that it’s important for you to read the new provisions for yourself. It’s worth at least skimming all 38 military justice provisions from the NDAA in this bookmarked PDF. I also recommend using our Word version of the UCMJ, and reading in full:

  • Article 6b (“Rights of the victim…”). Also check out the Crime Victims’ Rights Act (18 U.S.C. § 3771).
  • The future Article 32 (discussed in this post).
  • The new Article 46 (discussed in this post).
  • The future Article 60(c) and the new Article 60(d) already in effect (discussed in this post).
  • The future Article 56 (sex offense mandatory minimums) and Article 18 (jurisdiction for the mandatory minimums).

I think that there are more potential pitfalls for prosecutors than for defense counsel in the new rules. For starters, prosecutors need to be more cautious when making charging decisions. Charging the most serious sex offenses will implicate the mandatory minimums and the restrictions on the convening authority’s ability to reduce a sentence, even when there is a PTA. They will also invoke the requirement for review if not referred to trial. A victim named in a specification will have the option to refuse to participate in the Article 32 preliminary hearing, and the VWAP process will likely get more attention now that victims shall have an opportunity to submit post-trial matters. The trial counsel must also affirmatively act to invoke the victim-interview provisions of Article 46(b).

But there’s plenty of danger for defense counsel, who will need to get more creative in presenting a case under the future Article 32. And the mandatory minimums are hard to avoid, even when the accused pleads guilty, unless the plea is to a lesser offense that doesn’t have a minimum. There’s also the issue of the recommendation from a trial counsel for sentence reduction in recognition of substantial assistance. Such a recommendation isn’t required in a case with a pretrial agreement and no mandatory minimum sentence, but it’s going to be a distinguishing feature of a deserving accused. Wherever the facts support such a recommendation, defense counsel should try to get it, perhaps as a term of the PTA. And the defense has to tread carefully around the victim-interview provisions of Article 46 (for now, at least).

Both sides will get much more familiar with the deposition rules once victims can refuse to participate in an Article 32. And both sides will have to watch out for pitfalls from the provisions that don’t take effect until the future and apply only to offenses committed on or after their effective date (Articles 32 and 60(c), and the mandatory minimums). The normal practice of combining all known offenses into a single court-martial will create situations where two separate versions of the Code to apply to a single case. For example, offenses committed in November, 2014, and in January, 2015, and destined for the same general court-martial, will require two separate Article 32 proceedings (one an “investigation” of the November offenses, and the other a “preliminary hearing” on the January offenses). Similar difficulties will arise late this summer, when convening authorities start acting on cases that both pre- and post-date the new Article 60(c).

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